SCOTUS Should Steer Clear of the Politics of Gerrymandering

If an adjective creates a redundancy, does preceding it with two other adjectives give the Supreme Court a reason to venture where it has never gone before? Come Tuesday, the Court will hear oral arguments urging it to referee gerrymandering in the drawing of congressional districts. The justices should, like Ulysses, listen to this siren song but bind themselves from obeying it.

The arguments will concern two cases: one from Maryland, where Republicans are aggrieved, another from North Carolina, where Democrats are unhappy. The practice the court will consider is (adjective one) “partisan gerrymandering.” This modifier, however, does not modify; there is no other kind of gerrymandering.

Tuesday’s issue is whether the court should attempt something for which it has neither an aptitude nor any constitutional warrant — concocting criteria for deciding when (adjective two) excessive partisan gerrymandering becomes (adjective three) unconstitutional.

Gerrymandering is generally as surreptitious as a brass band and is, always and everywhere, as political as lemonade is lemony. It is the drawing of district lines by faction A for the purpose of disadvantaging faction B. This practice is older than the republic: Pennsylvanians and North Carolinians were engaging in it in the first half of the 18th century, about a century before it acquired its name. (In 1812, Massachusetts Democratic-Republicans, serving Governor Elbridge Gerry, drew a district shaped like a salamander.)

Until 1962, the court stayed away from the inherently political process of the drawing of district lines by legislatures organized along partisan lines because the Constitution is unambiguous: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” There are enough open-textured terms in the Constitution (“establishment” of religion, “unreasonable” searches, “cruel” punishments, etc.) to rescue the Supreme Court from ennui. The elections clause just quoted contains no such terms. (Although four years ago five misguided justices said “legislature” can mean a commission vested with redistricting power taken away by referendum from a state legislature.)

Furthermore, the political realists who framed the Constitution, and who understood the pervasiveness of partisanship, added the following to the elections clause quoted above: Congress may “at any time by law make or alter such regulations” as the states might write regarding congressional elections. So, the Constitution is explicit: Congress, not the judiciary, is the federal remedy for alleged defects in the drawing of congressional districts. The political branches of the state and federal governments are assigned to deal with the inherently value-laden politics of drawing district lines.

In 1872, 92 years before the court found a constitutional requirement (equal protection of the laws) for “one person, one vote,” Congress had said that districts must contain “as nearly as practicable an equal number of inhabitants.” This stipulation was strictly enforced after 1964, when the court enunciated the simple and neutral principle of numerically equal districts.

There can, however, be nothing simple or neutral about what opponents of gerrymandering want to inveigle the court into trying to devise. These include criteria for measuring unconstitutional excesses in the common practices of “cracking” (dispersing one party’s voters across districts dominated by the other party) and “packing” (one party concentrating the other party’s voters into supermajorities in a few districts). And the political-science professoriate stands ready to eagerly tutor the court about “wasted votes” resulting from “efficiency gaps.”

Today, people who are unhappy about North Carolina’s gerrymandering argue (as a lower court did) that “the Constitution does not authorize state redistricting bodies to engage in . . . partisan gerrymandering” (emphasis added). Now, there is a perverse doctrine: Everything is forbidden that the Constitution does not explicitly authorize.

Those who are eager to sink the judiciary waist-deep into the politics of politics resort to blunderbuss arguments. For example, they say they have suffered justiciable injury because gerrymandering “dilutes” their votes and infringes their First Amendment rights — even though everyone everywhere remains free to associate with his or her party of choice, and campaign and vote for any candidate.

The Constitution is silent regarding limits on state legislatures’ partisan redistricting practices and is explicit regarding Congress’s exclusive power to modify these practices. If the court nevertheless assigns a portion of this power to itself, its condign punishment, inflicted after each decennial census, will be avalanches of litigation arising from partisan unhappiness about states’ redistricting plans. And no matter how the court decides each case, its reputation as a nonpolitical institution will be steadily tarnished.